Chapter 4906: POWER SITING

(A)
"Person" means an individual, corporation, business trust, association, estate,
trust, or partnership or any officer, board, commission, department, division,
or bureau of the state or a political subdivision of the state, or any other
entity.

(a)
Electric generating plant and associated facilities designed for, or capable
of, operation at a capacity of fifty megawatts or more;

(b)
An
electric transmission line and associated facilities of a design capacity of
one hundred twenty-five kilovolts or more;

(c)
A gas
pipeline that is greater than five hundred feet in
length, and its associated facilities, is more
than nine inches in outside diameter and is designed for transporting gas
at
a
maximum allowable operating pressure in excess of one hundred twenty-five
pounds per square inch.

(h)
Pipelines
from a gas processing plant as defined in section
4905.90 of the Revised Code to a
natural gas liquids fractionation plant, including a raw natural gas liquids
pipeline, or to an interstate or intrastate gas pipeline;

(iii)
A
production operation as defined in section
1509.01 of the Revised
Code.

(C)
"Commence to construct" means any clearing of land, excavation, or other action
that would adversely affect the natural environment of the site or route of a
major utility facility, but does not include surveying changes needed for
temporary use of sites or routes for nonutility purposes, or uses in securing
geological data, including necessary borings to ascertain foundation
conditions.

(D)
"Certificate" means a certificate of environmental compatibility and public
need issued by the power siting board under section
4906.10 of the Revised Code or a
construction certificate issued by the board under rules adopted under division
(E) or (F) of section
4906.03 of the Revised
Code.

(A)
There is hereby created within the public
utilities commission the power siting board, composed of the chairman of the
public utilities commission, the director of environmental protection, the
director of health, the director of development, the director of natural
resources, the director of agriculture, and a representative of the public who
shall be an engineer and shall be appointed by the governor, from a list of
three nominees submitted to the governor by the office of the consumers'
counsel, with the advice and consent of the senate and shall serve for a term
of four years. The chairman of the public utilities commission shall be
chairman of the board and its chief executive officer. The chairman shall
designate one of the voting members of the board to act as vice-chairman who
shall possess during the absence or disability of the chairman all of the
powers of the chairman. All hearings, studies, and consideration of
applications for certificates shall be conducted by the board or
representatives of its members. In addition, the board shall include four
legislative members who may participate fully in all the board's deliberations
and activities except that they shall serve as nonvoting members. The speaker
of the house of representatives shall appoint one legislative member, and the
president of the senate and minority leader of each house shall each appoint
one legislative member. Each such legislative leader shall designate an
alternate to attend meetings of the board when the regular legislative member
he appointed is unable to attend. Each legislative member and alternate shall
serve for the duration of the elected term that he is serving at the time of
his appointment. A quorum of the board is a majority of its voting members. The
representative of the public and, notwithstanding section
101.26 of the Revised Code,
legislative members of the board or their designated alternates, when engaged
in their duties as members of the board, shall be paid at the per diem rate of
step 1, pay range 32, under schedule B of section
124.15 of the Revised Code and
shall be reimbursed for the actual and necessary expenses they incur in the
discharge of their official duties.

(B)
The chairman shall keep a complete record
of all proceedings of the board, issue all necessary process, writs, warrants,
and notices, keep all books, maps, documents, and papers ordered filed by the
board, conduct investigations pursuant to section
4906.07 of the Revised Code, and
perform such other duties as the board may prescribe.

(C)
The chairman of the public utilities
commission may assign or transfer duties among the commission's staff. However,
the board's authority to grant certificates under section
4906.10 of the Revised Code shall
not be exercised by any officer, employee, or body other than the board itself.

(D)
The chairman may call to his
assistance, temporarily, any employee of the environmental protection agency,
the department of natural resources, the department of agriculture, the
department of health, or the department of development, for the purpose of
making studies, conducting hearings, investigating applications, or preparing
any report required or authorized under this chapter. Such employees shall not
receive any additional compensation over that which they receive from the
agency by which they are employed, but they shall be reimbursed for their
actual and necessary expenses incurred while working under the direction of the
chairman. All contracts for special services are subject to the approval of the
chairman.

(E)
The board's offices
shall be located in those of the public utilities commission.

(A)
Require
such information from persons subject to its jurisdiction as it considers
necessary to assist in the conduct of hearings and any investigations or
studies it may undertake;

(B)
Conduct
any studies or investigations that it considers necessary or appropriate to
carry out its responsibilities under this chapter;

(C)
Adopt
rules establishing criteria for evaluating the effects on environmental values
of proposed and alternative sites, and projected needs for electric power, and
such other rules as are necessary and convenient to implement this chapter,
including rules governing application fees, supplemental application fees, and
other reasonable fees to be paid by persons subject to the board's
jurisdiction. The board shall make an annual accounting of its collection and
use of these fees and shall issue an annual report of its accounting, in the
form and manner prescribed by its rules, not later than the last day of June of
the year following the calendar year to which the report applies.

(E)
Notwithstanding sections
4906.06 to
4906.14 of the Revised Code, the
board may adopt rules to provide for an accelerated review of an application for a
construction certificate for construction of a major utility facility related
to a coal research and development project as defined in section
1555.01 of the Revised Code, or to
a coal development project as defined in section
1551.30 of the Revised Code,
submitted to the Ohio coal development office for review under division (B)(7)
of section
1551.33 of the Revised Code.
Applications for construction certificates for construction of major utility
facilities for Ohio coal research and development shall be filed with the board
on the same day as the proposed facility or project is submitted to the Ohio
coal development office for review.

The board shall
render a decision on an application for a construction certificate within
ninety days after receipt of the application and all of the data and
information it may require from the applicant. In rendering a decision on an
application for a construction certificate, the board shall only consider the
criteria and make the findings and determinations set forth in divisions
(A)(2), (3), (5), and (7) and division (B) of section
4906.10 of the Revised
Code.

(F)
Notwithstanding sections
4906.06 to
4906.14 of the Revised Code, the
board shall adopt rules to provide for an accelerated review of an application
for a construction certificate for any of the following:

(2)
An electric
generating facility that uses waste heat or natural gas and is primarily within
the current boundary of an existing industrial or electric generating
facility;

(3)
A gas
pipeline that is not more than five miles in length or is primarily needed to
meet the requirements of a specific customer or specific customers.

The board shall adopt rules that provide for the automatic
certification to any entity described in this division when an application by
any such entity is not suspended by the board, an administrative law judge, or
the chairperson or executive director of the board for good cause shown, within
ninety days of submission of the application. If an application is suspended,
the board shall approve, disapprove, or modify and approve the application not
later than ninety days after the date of the suspension.

No person shall commence to construct a major utility facility
in this state without first having obtained a certificate for the facility. The
replacement of an existing facility with a like facility, as determined by the
power siting board, shall not constitute construction of a major utility
facility. Such replacement of a like facility is not exempt from any other
requirements of state or local laws or regulations. Any facility, with respect
to which such a certificate is required, shall thereafter be constructed,
operated, and maintained in conformity with such certificate and any terms,
conditions, and modifications contained therein. A certificate may only be
issued pursuant to Chapter 4906. of the Revised Code. A certificate may be
transferred, subject to the approval of the board, to a person who agrees to
comply with the terms, conditions, and modifications contained therein.

No certificate is
required for a major utility facility on which construction had already
commenced on October 23, 1972, or within two years thereafter. This section
does not exempt such a facility from any other requirements of state and local
laws and regulations.

No certificate is
required for any major utility facility already in operation on October 23,
1972, and the facility shall not be exempt from any applicable state or local
laws or regulations. A certificate is required for any substantial addition to
a facility already in operation. "Substantial addition" shall be defined by the
power siting board.

Any electric
generating plant and associated facilities, electric transmission line and
associated facilities, or gas pipeline and
associated facilities which is not a major utility facility is not exempt from
state or local laws or regulations.

(4)
A
statement of the reasons why the proposed location is best suited for the
facility;

(5)
A
statement of how the facility fits into the applicant's forecast contained in
the report submitted under section
4935.04 of the Revised
Code;

(6)
Such
other information as the applicant may consider relevant or as the board by
rule or order may require. Copies of the studies referred to in division (A)(2)
of this section shall be filed with the office of the chairperson, if ordered,
and shall be available for public inspection.

The application
shall be filed not
more than five years prior to the planned date of commencement of construction.
The
five-year period may be waived by the board for good cause shown.

(B)
Each
application shall be accompanied by proof of service of a copy of such
application on the chief executive officer of each municipal corporation and
county, and the head of each public agency charged with the duty of protecting
the environment or of planning land use, in the area in which any portion of
such facility is to be located.

(C)
Each
applicant within fifteen days after the date of the filing of the application
shall give public notice to persons residing in the municipal corporations and
counties entitled to receive notice under division (B) of this section, by the
publication of a summary of the application in newspapers of general
circulation in such area. Proof of such publication shall be filed with the
office of the chairperson.

(D)
Inadvertent failure of service on, or notice to, any of the persons identified
in divisions (B) and (C) of this section may be cured pursuant to orders of the
board designed to afford them adequate notice to enable them to participate
effectively in the proceeding. In addition, the board, after filing, may
require the applicant to serve notice of the application or copies thereof or
both upon such other persons, and file proof thereof, as the board considers
appropriate.

(E)
An
application for an amendment of a certificate shall be in such form and contain
such information as the board prescribes. Notice of such an application shall
be given as required in divisions (B) and (C) of this section.

(F)
Each
application for certificate or an amendment shall be accompanied by the
application fee prescribed by board rule. All application fees, supplemental
application fees, and other fees collected by the board shall be deposited in
the state treasury to the credit of the power siting board fund, which is
hereby created. The chairperson shall administer and authorize expenditures
from the fund for any of the purposes of this chapter. If the chairperson
determines that moneys credited to the fund from an applicant's fee are not
sufficient to pay the board's expenses associated with its review of the
application, the chairperson shall request the approval of the controlling
board to assess a supplemental application fee upon an applicant to pay
anticipated additional expenses associated with the board's review of the
application or an amendment to an application. If the chairperson finds that an
application fee exceeds the amount needed to pay the board's expenses for
review of the application, the chairperson shall cause a refund of the excess
amount to be issued to the applicant from the fund.

(A)
Upon
the receipt of an application complying with section
4906.06 of the Revised Code, the
power siting board shall promptly fix a date for a public hearing thereon, not
less than sixty nor more than ninety days after such receipt, and shall
conclude the proceeding as expeditiously as practicable.

(B)
On an
application for an amendment of a certificate, the board shall hold a hearing
in the same manner as a hearing is held on an application for a certificate if
the proposed change in the facility would result in any material increase in
any environmental impact of the facility or a substantial change in the
location of all or a portion of such facility other than as provided in the
alternates set forth in the application.

(C)
The
chairperson of the power siting board shall cause each
application filed with the board to be investigated and shall, not less than
fifteen days prior to the date any application is set for hearing submit a
written report to the board and to the applicant. A copy of such report shall
be made available to any person upon request. Such report shall set forth the
nature of the investigation, and shall contain recommended findings with regard
to division (A) of section
4906.10 of the Revised Code and
shall become part of the record and served upon all parties to the
proceeding.

(2)
Each person entitled to receive service
of a copy of the application under division (B) of section
4906.06 of the Revised Code, if
the person has filed with the power siting board a notice of intervention as a
party, within thirty days after the date the person was served with a copy of
the application;

(3)
Any person
residing in a municipal corporation or county entitled to receive service of a
copy of the application under division (B) of section
4906.06 of the Revised Code and
any other person, if the person has petitioned the board for leave to intervene
as a party within thirty days after the date of publication of the notice
required by division (C) of section
4906.06 of the Revised Code, and
if that petition has been granted by the board for good cause shown.

(B)
The board , in extraordinary
circumstances for good cause shown, may grant a petition, for leave to
intervene as a party to participate in subsequent phases of the proceeding,
that is filed by a person identified in division (A)(2) or (3) of this section
that failed to file a timely notice of intervention or petition for leave to
intervene, as the case may be.

(C)
The board shall accept written or oral testimony from any person at the public
hearing, but the right to call and examine witnesses shall be reserved for
parties. However, the board may adopt rules to exclude repetitive, immaterial,
or irrelevant testimony.

A record shall be made of the hearing and of all testimony
taken. Rules of evidence, as specified by the power siting board, shall apply
to the proceeding. The board may provide for the consolidation of the
representation of parties having similar interests.

(A)
The
power siting board shall render a decision upon the record either granting or
denying the application as filed, or granting it upon such terms, conditions,
or modifications of the construction, operation, or maintenance of the major
utility facility as the board considers appropriate. The certificate shall be
conditioned upon the facility being in compliance with standards and rules
adopted under sections
1501.33 ,
1501.34 , and
4561.32 and Chapters 3704., 3734.,
and 6111. of the Revised Code. An applicant may
withdraw an application if the board grants a certificate on terms, conditions,
or modifications other than those proposed by the applicant in the
application. The period of initial operation under a certificate shall
expire two years after the date on which electric power is first generated by
the facility. During the period of initial operation, the facility shall be
subject to the enforcement and monitoring powers of the director of
environmental protection under Chapters 3704., 3734., and 6111. of the Revised
Code and to the emergency provisions under those chapters. If a major utility
facility constructed in accordance with the terms and conditions of its
certificate is unable to operate in compliance with all applicable requirements
of state laws, rules, and standards pertaining to air pollution, the facility
may apply to the director of environmental protection for a conditional
operating permit under division (G) of section
3704.03 of the Revised Code and
the rules adopted thereunder. The operation of a major utility facility in
compliance with a conditional operating permit is not in violation of its
certificate. After the expiration of the period of initial operation of a major
utility facility, the facility shall be under the jurisdiction of the
environmental protection agency and shall comply with all laws, rules, and
standards pertaining to air pollution, water pollution, and solid and hazardous
waste disposal.

The board shall not
grant a certificate for the construction, operation, and maintenance of a major
utility facility, either as proposed or as modified by the board, unless it
finds and determines all of the following:

(1)
The
basis of the need for the facility if the facility is an electric transmission
line or gas pipeline;

(3)
That
the facility represents the minimum adverse environmental impact, considering
the state of available technology and the nature and economics of the various
alternatives, and other pertinent considerations;

(4)
In the
case of an electric transmission line or generating facility, that the facility
is consistent with regional plans for expansion of the electric power grid of
the electric systems serving this state and interconnected utility systems and
that the facility will serve the interests of electric system economy and
reliability;

(5)
That
the facility will comply with Chapters 3704., 3734., and 6111. of the Revised
Code and all rules and standards adopted under those chapters and under
sections 1501.33 ,
1501.34 , and
4561.32 of the Revised Code. In
determining whether the facility will comply with all rules and standards
adopted under section
4561.32 of the Revised Code, the
board shall consult with the office of aviation of the division of multi-modal
planning and programs of the department of transportation under section
4561.341 of the Revised
Code.

(6)
That
the facility will serve the public interest, convenience, and
necessity;

(7)
In
addition to the provisions contained in divisions (A)(1) to (6) of this section
and rules adopted under those divisions, what its impact will be on the
viability as agricultural land of any land in an existing agricultural district
established under Chapter 929. of the Revised Code that is located within the
site and alternative site of the proposed major utility facility. Rules adopted
to evaluate impact under division (A)(7) of this section shall not require the
compilation, creation, submission, or production of any information, document,
or other data pertaining to land not located within the site and alternative
site.

(8)
That
the facility incorporates maximum feasible water conservation practices as
determined by the board, considering available technology and the nature and
economics of the various alternatives.

(B)
If the
board determines that the location of all or a part of the proposed facility
should be modified, it may condition its certificate upon that modification,
provided that the municipal corporations and counties, and persons residing
therein, affected by the modification shall have been given reasonable notice
thereof.

(C)
A copy
of the decision and any opinion issued therewith shall be served upon each
party.

Sections
4903.02 to
4903.16 and
4903.20 to
4903.23 of the Revised Code shall
apply to any proceeding or order of the power siting board under Chapter 4906.
of the Revised Code, in the same manner as if the board were the public
utilities commission under such sections.

(A)
As used in this section and sections
4906.20 and
4906.98 of the Revised Code,
"economically significant wind farm" means wind turbines and associated
facilities with a single interconnection to the electrical grid and designed
for, or capable of, operation at an aggregate capacity of five or more
megawatts but less than fifty megawatts. The term excludes any such wind farm
in operation on the effective date of this section.

(B)
No public agency or political subdivision
of this state may require any approval, consent, permit, certificate, or other
condition for the construction or initial operation of a major utility facility
or economically significant wind farm authorized by a certificate issued
pursuant to Chapter 4906. of the Revised Code. Nothing herein shall prevent the
application of state laws for the protection of employees engaged in the
construction of such facility or wind farm nor of municipal regulations that do
not pertain to the location or design of, or pollution control and abatement
standards for, a major utility facility or economically significant wind farm
for which a certificate has been granted under this chapter.

The power siting board, in the discharge of its duties under
Chapter 4906. of the Revised Code, may make joint investigations, hold joint
hearings within or without the state, and issue joint or concurrent orders in
conjunction or concurrence with any official or agency of any state or of the
United States, whether in the holding of such investigations or hearings, or in
the making of such orders, the board is functioning under agreements or
compacts between states or under the concurrent power of states to regulate
interstate commerce, or as an agency of the United States, or otherwise. The
board, in the discharge of its duties under Chapter 4906. of the Revised Code,
may negotiate and enter into agreements or compacts with agencies of other
states, pursuant to any consent of congress, for cooperative efforts in
certificating the construction, operation, and maintenance of major utility
facilities in accord with the purposes of such sections and for the enforcement
of the respective state laws regarding such facilities.

(A)
No
person shall commence to construct an economically significant wind farm in
this state without first having obtained a certificate from the power siting
board. An economically significant wind farm with respect to which such a
certificate is required shall be constructed, operated, and maintained in
conformity with that certificate and any terms, conditions, and modifications
it contains. A certificate shall be issued only pursuant to this section. The
certificate may be transferred, subject to the approval of the board, to a
person that agrees to comply with those terms, conditions, and
modifications.

(B)
The
board shall adopt rules governing the certificating of economically significant
wind farms under this section. Initial rules shall be adopted within one
hundred twenty days after June 24, 2008.

(1)
The
rules shall provide for an application process for certificating economically
significant wind farms that is identical to the extent practicable to the
process applicable to certificating major utility facilities under sections
4906.06, 4906.07, 4906.08, 4906.09, 4906.10, 4906.11, and 4906.12 of the
Revised Code and shall prescribe a reasonable schedule of application filing
fees structured in the manner of the schedule of filing fees required for major
utility facilities.

(a)
The rules also shall prescribe a minimum setback
for a wind turbine of an economically significant wind farm. That minimum shall
be equal to a horizontal distance, from the turbine's base to the property line
of the wind farm property, equal to one and one-tenth times the total height of
the turbine structure as measured from its base to the tip of its highest blade
and be at least one thousand one hundred twenty-five feet in horizontal
distance from the tip of the turbine's nearest blade at ninety degrees to
property line of the nearest adjacent property at the time of the certification application.

(i)
For any existing certificates and amendments
thereto, and existing certification applications that have been found by the
chairperson to be in compliance with division (A) of section 4906.06 of the
Revised Code before the effective date of the amendment of this section by H.B.
59 of the 130th general assembly, September 29,
2013, the distance shall be seven hundred fifty feet instead of one
thousand one hundred twenty-five feet.

(ii)
Any amendment made to an existing certificate after
the effective date of the amendment of this section by H.B. 483 of the 130th
general assembly shall be subject to the setback provision of this section as
amended by that act. The amendments to this section by that act shall not be
construed to limit or abridge any rights or remedies in equity or under the
common law.

(c)
The setback shall apply in all cases except
those in which all owners of property adjacent to the wind farm property waive
application of the setback to that property pursuant to a procedure the board
shall establish by rule and except in which, in a particular case, the board
determines that a setback greater than the minimum is necessary.

(A)
An
electric generating plant that consists of wind turbines and associated
facilities with a single interconnection to the electrical grid that is
designed for, or capable of, operation at an aggregate capacity of fifty
megawatts or more is subject to the minimum setback requirements established in
rules adopted by the power siting board under division (B)(2) of section
4906.20 of the Revised Code.

(1)
For any existing certificates and amendments
thereto, and existing certification applications that have been found by the
chairperson to be in compliance with division (A) of section 4906.06 of the
Revised Code before the effective date of the amendment of this section by H.B.
59 of the 130th general assembly, September 29,
2013, the distance shall be seven hundred fifty feet instead of one
thousand one hundred twenty-five feet.

(2)
Any amendment made to an existing certificate after
the effective date of the amendment of this section by H.B. 483 of the 130th
general assembly, shall be subject to the setback provision of this section as
amended by that act. The amendments to this section by that act shall not be
construed to limit or abridge any rights or remedies in equity or under the
common law.

(A)
Upon a finding by the power siting board
that there are reasonable grounds to believe that a person has violated a
provision of section
4906.98 of the Revised Code, the
board shall fix a time for hearing such complaint and shall notify the person.
The notice shall be served not less than fifteen days before the date of
hearing and shall state the matters that are the subject of the complaint.
Parties to the complaint are entitled to be heard, to be represented by
counsel, and to have process to enforce the attendance of witnesses.

(B)
The power siting board by order or its
chairperson, with written notice to the person and opportunity to respond, may
require that any activity that is the subject of a complaint under division (A)
of this section be suspended for the duration of the board's consideration of
the complaint. Upon a showing by the party against which the complaint was
filed that all matters have been addressed satisfactorily, the chairperson
shall terminate the suspension.

(C)
After notice and opportunity for hearing
in accordance with division (A) of this section and upon a finding by the board
that a person has violated a provision of section
4906.98 of the Revised Code, the
board by order may assess a forfeiture of not more than five thousand dollars
for each day of the violation, but the aggregate of forfeitures for a related
series of violations shall not exceed one million dollars. In determining the
amount of any forfeiture, the board shall consider all of the following:

(D)
The attorney
general, upon written request of the board, shall bring a civil action to
recover any forfeiture assessed under division (C) of this section but not
paid, or to seek other appropriate relief, including injunctive relief. The
action shall be brought in the court of common pleas of Franklin county. The
court shall give precedence to the action over all other cases.

(E)
All forfeitures collected under division
(C) or (D) of this section shall be deposited into the state treasury to the
credit of the general revenue fund.

(A)
No
person shall construct a major utility facility or economically significant
wind farm without first obtaining a certificate.

(B)
No person shall construct, operate, or
maintain a major utility facility or economically significant wind farm other
than in compliance with the certificate the person has obtained.

(C)
No person or economically significant
wind farm shall fail to comply with any order issued pursuant to this chapter
or with a suspension otherwise required under division (B) of section
4906.97 of the Revised Code.

Whoever willfully violates any provision of section
4906.98 of the Revised Code may be
fined not less than one thousand dollars nor more than ten thousand dollars for
each day of violation, or imprisoned for not more than one year, or both.